Self-reps part 2: how to keep costs down

By AdvocateDaily.com Staff

In the final instalment of a two-part series on self-represented litigants, Toronto senior litigation lawyer Jeffrey Silver discusses practical tips for lawyers acting opposite individuals without legal counsel.

In part one of this series, Silver, principal of Jeffrey C. Silver Barrister, explained the significant obligations that judges and lawyers owe to parties representing themselves in court. Here, he offers some practical tips for lawyers seeking to discharge those duties without unreasonably adding to the cost of the matter.

Prepare your client

Lawyers should be frank with their clients about the difficulties a self-represented opponent presents for lawyers, says Silver.

“They should be warned that there may be some additional time required to move issues forward, and possibly some additional cost,” he says.

At the same time, Silver reassures clients that any duties he has to the other side will not detract from his responsibilities to his own client, set out in rule 5.1-1 of the Law Society of Ontario’s Rules of Professional Conduct.

This passage spells out counsel’s duty to a client in adversarial proceedings “to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

Set the ground rules

The very first encounter with a self-represented opposing party should be used to set the tone for all future interactions, says Silver, who makes it his practice to inform them that any out-of-court communications will be made in writing only.

“No meetings or phone calls — that helps avoid any misunderstandings,” he explains. “To the extent that it’s possible, all in-court communications should also occur on the record or in the presence of a clerk.”

Silver says this is also a good time to broach rule 7.2-9, which instructs lawyers to make sure the unrepresented person knows they are acting exclusively in the interests of their own client.

“I explain that I can’t offer them legal advice, and encourage them to seek help from the lawyer referral service, family law information centre or other agencies, as appropriate,” he says.

Take the high road

Although lawyers are obligated to treat opposing counsel with civility and respect, Silver says it’s good practice to kick it up a notch when dealing with a self-represented party.

“It makes it easier for a master or judge to see that you’re fulfilling your duties, and they will appreciate any efforts to avoid ratcheting up the tension,” he says.

“Correspondence should avoid technical legal terminology and should not be ambiguous or rude, especially since there is a good chance that it could be introduced as an exhibit by a self-represented party on motions or otherwise.

“Keep in mind that they are neither an officer of the court, nor bound by undertakings, so it may be difficult to hold them to commitments,” Silver adds.

Scheduling and adjournments

“This is a key area, given the obligations of both lawyers and the court to ensure unrepresented parties receive a fair hearing,” Silver says. “You need to be aware that more leeway is needed when accommodating their schedules and granting adjournments, as judges expect self-represented parties to be given every opportunity to make their case.

“If the lawyer is considerate in this regard, and there is no real prejudice to their own client, then it may end up saving costs down the road,” he says, explaining that unnecessarily rigid opposition may only inflame relations without any discernible advantage to the represented party.

“If you take the high road and go out of your way to accommodate, you’ll be seen in a better light by the adjudicator, who will also be more likely to impose sanctions if they sense that the self-rep is taking advantage,” Silver says.

Abusive or vexatious behaviour

In some cases, even the best efforts of counsel will be met with unreasonable behaviour on the part of a self-represented opponent. Fortunately, Silver says there are options for lawyers faced with such situations.

“Give them fair warning and use clear language when this occurs,” he says.

If it persists, Silver says rule 60.12 of Ontario’s Rules of Civil Procedure offers a potential solution, by empowering judges to stay or dismiss a proceeding for failure to comply with an interlocutory order, such as a failure to pay costs.

Rules 37.16 or 2.1 can also be used to limit the ability of parties to act without leave of the court if they are found to have behaved in an abusive or vexatious manner, he adds.

For part one, where Silver discussed what's expected of judges and lawyers, click here.